The UK Border Agency ? Tough on Immigration or Just Tough on Immigrants?

In one of the most eventful years in immigration history, 2010 saw new immigration policies introduced that have caused controversy and divided opinion amongst politicians and UK employers alike. What seem to be very draconian measures are perceived by some as the Coalition’s need to appear tough on immigration whilst putting its own stamp on the […]

In one of the most eventful years in immigration history, 2010 saw new immigration policies introduced that have caused controversy and divided opinion amongst politicians and UK employers alike. What seem to be very draconian measures are perceived by some as the Coalition's need to appear tough on immigration whilst putting its own stamp on the political agenda: an agenda that can be best summarised in Immigration Minister Damian Green's own words: 'The government remains firmly committed to reducing net migration to the tens of thousands.' The new policies certainly seem to confirm this statement, but are they a step too far? With this in mind, we are going to review the most significant changes made over the past 12 months and attempt to chart the possible future course for UK immigration.

The civil penalty regime introduced by the Immigration Asylum and Nationality Act 2006 remains one of the cardinal pillars of immigration. Foreign workers caught working illegally for UK companies have dominated the UK Border Agency's news section, resulting in small, medium and large companies being named and shamed on the UKBA (UK Border Agency) website. Consequently, on 6th January 2010, a new biometric requirement was also introduced for all Tier 2-sponsored workers who are now required to obtain an identity card for foreign nationals.

The Start

The 22nd February saw a tighter regime introduced for student and academic institutions wishing to register under the Tier 4 Scheme. It makes the issuing of an electronic Confirmation of studies (CAS) mandatory for in-country as well as out-of-country students' applications, with further restrictions being brought into force on the 3rd March for students pursuing courses below degree level.

Soon after on 6th April, a much higher threshold was set for Tier 1 General applicants by raising the earnings band as well as reintroducing points for bachelor degree qualifications and amending the age category to allow points to be claimed for those up to the age of 39. The new table allowed applicants with gross earnings above £150K to qualify without any academic or professional qualifications and the initial grant of status was reduced to two years as opposed to three years under the previous rules.

Also in April, the Intra Company Transfer (ICT) route was replaced by three categories: Established Staff, Graduate Trainee and Skills Tranfers. For this visa category, the most significant changes were increasing the qualifying period of prior employment from 6 months to 12 months and removing the entitlement to apply for settlement.

For the following two months, things remained fairly quiet, but on 19 July, a temporary cap was introduced for Tier 2 and Tier 1 General applications made overseas. In addition, the Tier 1 General's threshold was raised from 75 to 80 points under Appendix A whilst a monthly quota was set at a mere 600. Employers and sponsored workers were penalised by the introduction of a cap on the number of Certificates of Sponsorship (CoS) to be issued, with none available for newly registered sponsored, except in exceptional circumstances.

After a another period of relative calm, policy changes recommenced on 29th November when the UK Border Agency introduced a new English language test affecting those applying for a leave to enter and/or remain in the UK as a spouse, civil partner, unmarried partner, same-sex partner, fiancée and prospective civil partner of a British citizen or a person settled in the UK. All applicants in any of those categories wishing to come and/or remain in the UK will now be required to demonstrate basic knowledge of English at least equivalent to A1 level.

Tougher Measures

Following the advice of the independent Migration Advisory Committee (MAC) published in November 2010, the UK Government announced new measures to manage the numbers of people from outside of Europe who are allowed to come to the UK. Thus, as of 1st April 2011, the following measures will be introduced:

The Tier 1 (General) highly skilled worker route will be closed.Tier 1 'Exceptional Talent' sub-category will be introduced. This route will cover migrants who have won international recognition in scientific as well as cultural fields with a limit of 1,000 places.The Tier (1) Entrepreneur route will be reformed to make it more attractive and create a new avenue for promising start-up companies which do not meet the investment threshold.Tier 1 (Investor) route will offer an accelerated route to settlement, depending on the level of investment.

There will also be new changes affecting the Tier 2 Scheme and sponsored workers. In particular, this route will be subject to a limit of 20,700 places for all UK employers. However, this limit will not apply to in-country applications from those already in the UK, dependants of Tier 2 migrants, Tier 2 (General) applicants who are filling a vacancy with a salary of more than £150,000, Tier 2 Sportsperson and Minister of Religion applicants as well as ICT applicants.

Tier 2 General Scheme qualifying criteria will be restricted to graduate-level vacancies. The existing Tier 2 (General) migrants in jobs below graduate level will be able to extend their permission to stay only if they meet current requirements. In addition, the minimum level of English language competency will be increased from basic to intermediate level (B1 on the Common European Framework of Reference).

Applicants in the Established Staff sub-category will be able to stay in the UK for up to 5 years as long as their salaries exceed £40,000 per year, but those paid between £24,000 and £40,000 face further difficulties as they will only be able to enter for up to 12 months within a specified period.

Defying the Courts

On 17th December 2010, the High Court found the interim cap imposed on Tier 1 and Tier 2 entry clearance applications to be unlawful since the measure had not been subjected to Parliamentary scrutiny. However, the UK Border Agency has decided to play hard ball on this issue, and on 23rd December it announced that it would stop accepting Tier 1 General applications made overseas as the temporary limit had been reached. Tier 1 General application made in-country and Tier1 Post Study worker applications (in-country and out-of-country) will only be available until April 2011. It is not yet clear whether the Government will seek to appeal the High Court's decision.

This year, it is likely that the Government's focus will turn to the numbers of students coming to the UK and the new proposals could see the Tier 4 Scheme restricted mainly to those studying degree-level courses and to child students unless the institution is a Highly Trusted Sponsor offering courses below degree level (NQF 3, 4 and 5) to adult students. The English language competence is also likely to become the key indicator of someone's eligibility to complete a higher-level course and there is a proposal to raise the language to B2 competency. Furthermore, it is likely that only Tier 4 students studying for more than 12 months will be allowed to bring their dependants into the UK. Work restrictions will be set for both main applicants and their dependants who will not be able to work unless they qualify in their own rights.

We are also concerned that very significant changes will be introduced for settlement applications, in particular a higher criminality threshold, Tier 1 and Tier 2 holders might be required to meet the salary criteria that applied when they last extended their permission to stay while highly skilled migrants will be asked to pass the 'Life in the UK' test prior to gaining settlement.

Looking Forward

In a nutshell, even in the eyes of a seasoned immigration practitioner, this has been an annus horribilis in UK immigration policy due to some very innovative measures introduced by the Coalition to cherry-pick the most desirable migrant workers. UK businesses have been able to apply some pressure on the Government, and despite the rhetoric it is a known fact that the UK economy needs not only a sustainable, but a flexible immigration system capable of attracting foreign money, labour and perhaps more importantly, brains. In our experience, the UK Government has increased the quality and efficiency of the different services provided, but unfortunately, as they continue to tighten the rules it also appears that discretion is becoming a thing of the past. On the plus side, the appeal system is strong and for the time being remains resilient to the Government's agenda. Our wishes and hopes are for the UK to remain a tolerant, fair and welcoming multicultural society.